The New Jersey Supreme Court is considering if it is appropriate to send someone to jail for careless driving that causes a fatal accident.
An appeals court overturned a 15-day jail term imposed for striking a pedestrian who later died, finding the sentencing judge acted on incorrect factual information. The state wants the sentence in State v. Palma reinstated.
“There is no issue of propriety of a brief custodial sentence,” Assistant Monmouth County Prosecutor Paul Heinzel argued to the justices on Monday. “When you’ve got a death, a 15-day jail term would hardly shock anyone’s conscience.”
He said defendant Diana Palma was “oblivious to her surrounding circumstances,” calling her conduct “negligence in the extreme.”
Justice Barry Albin asked whether extreme negligence equals recklessness, which is a factor used to determine if a custodial term should be imposed.
“You get into a shadowy area where carelessness ends and recklessness begins,” Heinzel replied.
Albin noted that the Monmouth County Prosecutor’s Office chose not to file criminal charges against Palma.
Heinzel said it was determined that the state could not prove beyond a reasonable doubt that Palma was on her cellphone at the time of the accident, although she admitted using the phone shortly beforehand.
Justice Anne Patterson asked whether the court should set some factors for deciding if a custodial term was appropriate in circumstances such as these.
Heinzel said judges should look at the nature and cause of the offense and the harm to the victim.
Albin asked whether every careless driving offense involving a death should carry a 15-day jail sentence.
“I’m not saying that,” Heinzel said. “But it’s a factor to be considered.”
Palma’s attorney, Red Bank solo Paul Zager, argued against a jail term.
“I don’t think you can ever send anyone to jail for careless driving,” he said. “All Ms. Palma did was have an accident. If you commit something that’s careless, you don’t get jail time.”
Here, Zager said, there was no evidence that Palma was on her cellphone, that she was intoxicated, that she was sleepy or that she was driving at an excessive speed. “It was nothing but an accident,” he said.
Patterson asked Zager, too, whether there should be factors to consider.
“The nature and extent of the injuries, I think, is the only factor that could go against Ms. Palma,” Zager said. He added that the victim’s family did not appear at the guilty plea, at which time they could have lodged an objection.
“Can you infer anything from that?” Patterson asked.
“It’s fair to infer that they accepted that this was an accident,” Zager replied.
Zager argued below that a jail sentence would impose an undue hardship on Palma, who has a teenage son.
Patterson asked what undue imposition would be created if Palma served her sentence on weekends. Zager said Palma, who is divorced, still has to take care of her son over the weekends.
Albin asked whether the father could step in on those days Palma is serving her sentence.
“I have to concede he could,” Zager said.
Albin then asked whether a jail sentence could be imposed if the defendant had a lengthy record of driving offenses.
Zager said he would have to concede to that “in order to retain my credibility.” Yet, he added, “it’s Draconian to send someone to jail” for careless driving.
The accident occurred on Feb. 22, 2010. Palma was driving east on Bergen Place in Red Bank. After stopping at a light, she turned left onto Broad Street. She struck 44-year-old Alla Tsiring of Staten Island, dragging her for a distance before being stopped by another driver.
Municipal Court Judge William Himelman sentenced her to 15 days in jail, suspended her license for 90 days and fined her $241. “…[S]omeone was murdered,” he said at the time. Monmouth County Judge Ronald Reisner upheld the sentence.